compensation?

[Guest]

Hi,

I have a targa 37 which was damaged recently whilst being moved by the marina. I wondered if any other users had been in this situation and what compensation they were offered and/or received for the inconvenience caused.

Without mentioning any names, this is what happened.
On Friday 26th April my boat was booked to be lifted to have the anodes changed. It was an extremely windy day and as the weather continued to deteriorate I received a call from the marina asking my permission for the boat to be taken round under power by their skipper rather than towed. I told them that as long as their skipper was capable I had no problem with this and they would take responsibility for anything that happened.

You guessed it. As the boat approached the lift the wind caught her and blew her on to an anchor at the stern on which she then pivoted and smashed onto an anchor at the bow causing fairly extensive damage to the gel coat and badly ripping the rear canopy, scratching the gel and tearing into the cockpit seatback.

Since this time the boat has been in the shed awaiting repairs as it is unusable in it's present state.

What's more, I am still being charged for my berth!
In addition I and 3 friends had to cancel our planned trip to Guernsey and the Channel Islands planned from the bank holiday weekend and through to the 12th May. Also an annual anniversary trip/stay for last weekend had to be cancelled. The way things are going, I doubt if the repairs will be completed before the end of May or even early June and as such I have effectively lost 15% of the active annual season, one that for us, given the constraints of the weather is short enough as it is.
I also have the need to stay in the area on a regular basis, and now the boat's in the shed I can't, so I am forced to stay elsewhere, either in hotel accommodation or with friends.

I feel under the circumstances that I should be compensated for the loss of use and inconvenience this has caused. What do you think?

 

[tcm]

Re: calling john watson!

I think that you have excellent chance of success. You need a solicitor very quickly, and you need to keep details of actual losses on paper - that is, rental of other boats/hotels, berthing for non-boat, depreciation of incapacitated boat etc. etc. which will all add up to best part of twenty grand, but you might settle for ten.

I put "calling john watson" cos he is the new improved MDL head honcho who may be able to cast light on the issue.

 

[BarryH]

Re: calling john watson!

Only if, a disclaimer hasn't been signed as part of the contract with the marina regarding taht they are not responsable for any damages whatsoever caused......blah, blah.

I looked at a few of the smaller marinas on the south coast. They have nearly all got this clause in their contracts. Bit off if you ask me!

Wha'dya mean "I'm always playing with this engine" its the only way to get it to run!

 

[tcm]

Re: unreasonable contract

ooh. But if they ask to move a boat, and then move it, they are responsible and it matters not (i think) if they use contracts where it says that they aren't cos the contract is between a company and a consumer. imho.

 

[jfm]

You have a claim. Some thorts:

your claim is for compensation for what you have lost. That includes repairs. It's u to you whether you trust this marina to repair it - you could take it elsewhere, if you want. That increases the £££ cost to your marina, so a bargaining chip....

Take loads of pics b4 they start work.

The law allows you to recover costs which you have suffered and the suffering of which was "reasonably forseeable". This can lead to some negotiation round the edges. You have a duty to mitigate losses (or your claim is reduced if you dont). So, if you had to stay in a hotel becuase of a business trip that you couldn't reschdule, that's part of your claim. Not too swanky. Unfortunately you say you can also stay with friends, which doesn't help the argument this cost is unavoidable.....

Loss of use is the hardest bit. It works for car hire, if you need the car. But do you NEED a boat - in the eyes of the law? Tricky stuff. Need a good lawyer on that one. If you charter a boat for a vacation they might resist, on grounds you could have rescheduled your holiday till after the boat is fixed (could you?). Debatable....and risky. But I'm not giving up here, you have a case esp in view of the season/timing point you mention, and you can claim you "need" some leisure ie boating (we all do!). But this is tricky

imho you should claim diminution. The argument goes like this. When you come to sell the boat, you have a duty to disclose material info. That includes the fact it has had a big scrunch repair. Buyer will turn his nose up (you would, wouldn't you?). That amounts to a cost for you of, say £5k on a boat as serious as a T37. So you have lost that money now, needs reimbursement. You need a very skilled lawyer to run this argument properly, but I assure you it works. It is standard paractice to get an "extra" £2-4k off the other driver's insurance if someone smashes into your BMW or Merc (not ford Focus), using this argument, but it's only ever pursued by people who know how to do it, who are few and far between.

Save all receipts obviously. Tread very carefully. Get the right lawyer (his fees form part of your claim).

 

[BarryH]

Re: Small print.

I agree totaly. But if the small print says this that and the other and it was signed, then they've got you by the dangaly bits. But in saying that, if they asked to move it and they agreed to take and resposibility for "any damage caused" then should be ok. Or if person helming was not "fit" or "experienced" enuff. then no probs.

I only say this as I have been caught out before, and it took bloody ages to get the matter settled. What we need to know is, have the marina admitted liability. If yes, then cane the buggers for all that you are legally intitled too.

Wha'dya mean "I'm always playing with this engine" its the only way to get it to run!

 

[jfm]

Re: unreasonable contract

Yes, such a term wd be unreasonable, therefore utterly unenforceable.

One catch, they might have a clause that limits their liability (eg excluding consequential loss) - that might be enforceable in which case a problem, but like I say you can claw this back with a clever "diminution" claim

 

[Guest]

Re: Small print.

Barry,

In answer to your question, whilst I have received nothing in writing they (the marina) have verbally admitted fault (I was 150 miles away at the time) and arranged with their insurers to proceed with the repairs which are underway, albeit slowly.

Nick.

 

[tcm]

Re: contemporaneous notes

Of course, you don't have a recording of the telphone call. But the next best thing is a "contemporaneous note" - a note that you made at the time. Now, you can't sit there and scribble down post-it notes of abilbis "proving" that you weren't here or there to avoid a murder case. But in this case, a contemporaneous note of exactly who called, what they said including key phraes, where you were, what else happened on that day essentially builds the weight of your argument.

This is a civil matter, not a criminal matter, so your notes of them admitting liability, by whom , and when, is v good stuff. Civil cases are judged by "balance of probabilities" and not "beyond reasonable doubt".

It would seem that the case will never get anywhere near court as their insurers will have lawyers, and you will have a laywer too, hopefully a better one. Get a shit hot one, and the closer to High Court in London they are based, generally the more dangerous they'll be so you'll pay more, but you'll win. I think you need one with experience of marine law. The letterhead of the solicitors should be blathered with partners names, possibly some gold lettering. Note that the insurers solicitors will be somewhere around there so you don't want some craphead next door to port solent (oops!) who normally does divorce and conveyancing.

When speaking with the lawyer make it clear that you want to be on the water asap. So you can tout around for quicker workers and send the boat there. But don't do anything till seeing lawyer.

Note that since you both have lawyers, then you lawyer and the insurers on the other side will work to mitigate losses, and with your lawyer being a) fab and b)expensive they are much more likely to cop out and settle high and soon than if you had a crap lawyer who i) isn't as clever as the other lot and ii) is less expensive than the other lot. Really stupid people buy really crap lawyers but fail to understand this situation, so it goes to court where the judge decides who is the more expensive lawyer, and he always wins regardless.

 

[jfm]

Re: do you need a lawyer?

Nick:
Reflecting on this, I guess thay probly have small print in contract so you cannot claim consequential loss. If they dont, then great. But if they do, the way to even up the score card is make a diminution claim. That gets you a cash sum, over and above the repair. You need the right sort of lawyer to do this, let me know if you would like suggestion for a seriously hot chap who can do this for you. The fee basis is no win no fee, your only outlay is the cost of one expert, say a few hundred quid. As TCM sed, this is all about having the right lawyer. IMHO

 

[petem]

duty to disclose material info?

Surely you only have to disclose if asked (caveat emptor)?

 

[jfm]

Re: duty to disclose material info?

Yes I you're right on the cav emptor principle, and my post rambled a bit. But the diminution claim still flies in these circs. Caselaw makes clear that the owner suffers this financial loss at the time the prang occurs, and is entitled to compensation. He cannot be sure the buyer will not enquire or otherwise find out about the prang in 2 yrs time when he sells the boat, and clearly on a fair like-for-like disclosure basis the value loss has occured if you compare the pranged boat with an identical unpranged one. Putting it another way, it will not work as a valid defence for the mariner/insurer to say " you will not suffer that loss becos you dont have to tell any buyer about the prang". The value loss occurs becos of the prang, not becos of the fact you told the buyer that your boat had been pranged.

Sorry if rambling. This stuff does work. £500 for a few panels on a vectra is normal, likewise £5000 for a Porsche, but only with a good lawyer. So I wd think several £k for a biggish T37 prang?

 

[Guest]

Re: Lawyers are always the winners..

Hi Nick, Having read the posts, it looks like they are accepting responsibility for the damage and their insurers are getting on with the repairs albeit at a snails pace.

What you are looking for is compen for your losses which are porbably not covered by the insurance.

IMHO it is always best to start talking face to face with the on-site decision maker. The marina manager. Avoid taking a position.. "This is what I demand or you'll hear from my lawyer.." as it's hard to back track with out loosing credibility. Try "Suppose I were to say that I had lost out to the value of £20K as a result of the incident, for the reasons blah blah. Is there some way that we could settle that?" And start taking it from there.

Local Decision maker will not give you money without a fight... he or she will have to answer to the boss or board at some point for an ass-kicking. He or She may well be able to give you discounted berthing for x number of years til you're both happy. They can write the berth as being occupied by a 27'. No loss of face on either side and everybody happy.

Lawyers fees not paid, relationship with the custodians of your boat maintained, and maybe after 4 or 5 years they'll forget to chagre you at full price.

As you are negotiating, hint that the compen increases the longer that they take to fix it. If they are smart, they will put pressure on the repairers.

Good luck

KCA

 

[Guest]

Re: calling john watson!

I stand by to be of service! 023 8045 0209
Regards, John

 

[petem]

Reminds me of a story a few years back. Chap drops his Ferrari off to be serviced at a dealer. Some idiot mechanic takes it for a spin and loses it (c. £50k. of damage) Chap quite rightly does'nt want it back. Dealer says it'll be fixed up better than when it left the factory. Chap says no way. Dealer offers trade price for car. Chap wants retail value so he can buy another one. Stalemate. Went to court.

Fraid I don't know what the outcome was so rather a waste of time telling this story!

P.S. Premier have an exclusion for Consequential Loss. I imagine most do. Do we know which marina was this chap in? When I had my boat they would never move it if it was windy.

 

[Guest]

Re: calling john watson!

John,

thank you for your response, I have called and left a message with your office and left my number. I look forward to speaking to you at a convenient moment.

regards

Nick.

 

[Guest]

Re: duty to disclose material info?

I agree about only answering if I'm asked, but I think I will be.

The rear canopy was destroyed in the impact and as such will require a new one. Given that these things never look the same as the original - take a walk down any pontoon - especially when the rest of the canopy will be the original I think this is likely to raise the enevitable questions.

Then it comes down to how much would a hole in the topside/toerail, which has had to be opened out to approx. 9/10 inches to allow the repair, and cracks which could result in the aft cockpit side being extensively reconstructed, would affect the value and desirability over an equivalent vessel?

Whilst I'm sure the repairs will be carried out correctly and whilst I know that worse damage is regularly repaired I do not see why I should have to be penalised for any reflection in the boats value as a consequence of this.

Nick

 

[Guest]

Re: Lawyers are always the winners..

Unfortunately the on-site manager seems to be unable to take the time to speak to me.

Despite this, and given that once the repairs have been completed, I will need to maintain a friendly relationship with them for the duration I continue to berth there and despite the likelihood that I will need to seel the boat in the near future I would want to return there in the future should I get another boat.

I therefore wrote to the Marina Manager last week and, without prejudice, stated my case for compensation and the grounds upon which I feel I should receive such. I asked that their insurers contact me to discuss this matter, and whilst I have spoken to my Lawyers I have decided to hold off on this course as yet given the wish to maintain a pleasant relationship. After all, an incident has occured, it was after all an accident and that is why we have insurers and insurance.

The good news is that whilst I have still not been contacted by the manager, this has spurred them into action and the repairs, I discovered upon my arrival early Friday afternoon, were instructed the very morning the letter arrived, not that my letter caused them to spring into action I'm sure <G>.
Unfortunately it is anticipated that they will take a further 2 to 3 weeks to complete by which time the boat will have been out of use for between 6 and 7 weeks, a period in my boating terms of closer to 20 to 25% of the whole and arguably 30% of the prime part of the season.

Whilst I'd love to entertain the notion of a discount against my berthing fees, I doubt this will work, as I stated already despite the accident they are still continuing to charge me for the berth I currently have - and during the weekends when busy - sticking visitors in it!

Thank's for your comments and advice, I'll continue to keep you all informed.

Nick

 

[Guest]

Re: calling john watson!

Will call Nick

 

[jfm]

Re: beware \"without prejudice\"..

A small point. Often people write letters on a "without prejudice" basis in these matters. But very often you would be much better off not writing "without prejudice", and instead writing just on a normal admissable-into-court basis. Very often the "without prejudice" status of letters can work against you, not in your favour. Take care.